2018 NY Slip Op. 02781
April 25, 2018
This proceeding was called pursuant to Family Court Act Article 4. The mother is appealing a decision that was previously made by Kings Family Court on January 12, 2017. In that proceeding, the mother’s objections were denied, and the court granted the father’s request for a downward modification of child support. The mother’s petition to address arrears was only addressed in that the amount of the father’s arrears was calculated to be approximately 60 thousand dollars.
The parties have 3 children. It was a stipulation of settlement that the father pay for child support. The mother sought to enforce the petition. The father filed a petition for a downward adjustment of child support. The court granted the mother’s motion and found the father’s arrears to be close to 60 thousand dollars. The mother filed an objection which was denied. The mother appeals.
The court reasons that in order to make a downward adjustment in child support, the moving party must show that there has been a substantial change in circumstances, pursuant to Family Court Act 451 [a], Matter of Lagani v Li, 131 AD3d 1246. In this instance, the father had demonstrated a substantial change in circumstances. In this case, the mother was no longer paying for child care (Matter of Scarduzio v Ryan 86 AD3d 573). The court was correct in denying the mother’s motion.
Paying child support can be challenging. If someone is unable to make their child support obligations what type of recourse would they have? Bankruptcy is not an option here, because child support obligations are nondischargeable in bankruptcy.
Generally, if a party wants a downward adjustment in their child support, there are two options. The first is by voluntary agreement with the other parent. The second is to ask the court to order a reduction. The moving party must show that their expenses have changed or that their income has been greatly reduced. A good example of this would be where the party has been laid off their job, and although they have been looking diligently they have been unable to find work. Reasons that would not work in this instance would include getting remarried, voluntarily reducing your hours at work, having children or taking a lower paying job would not be sufficient reasons for a downward adjustment.
Unfortunately, either way, it is a difficult situation. It would be challenging to get a custodial parent to agree to less money if they are concerned about their ability to properly care for the child. This is only complicated if the parents are adversarial. While the court will modify support in certain situations, the judge will ultimately look at what is best for the child. If the judge feels that the child requires a certain amount of money a month to live a decent life, he will not reduce the child support. If, however, the petitioning parent makes a well-documented argument as to why they are unable to make the payments they may get a reduction. It is important to note that even when the moving party presents clear evidence that they are unable to make the payments, the court will still likely tell them to find ways to minimize expenses or earn extra money rather than reduce the payments.
If you are having trouble making your child support payments, or you have a child custody problem, it is important to speak with Stephen Bilkis and Associates for guidance. We have offices throughout New York to serve you. Call us today at 1-800-NYNYLAW to arrange for a free consultation.